Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Thursday, September 05, 2013

If Texas justice reforms were so great, why does the state still have nation's largest prison population?

Texas justifiably gets a lot of credit in the national press for its "smart on crime" probation reforms from 2007, but three sessions have passed since then and far fewer in the national press seem to have noticed that the Texas Lege subsequently has done very little on that front.

California has significantly reduced its prison population, though not to the full extent required by a federal court order. The Golden State reduced its inmate population by 15,035, or around 10%,
between 2011 and 2012, according to the Bureau of Justice Statistics ("Prisoners in 2012 - Advance Counts"). Gov. Jerry Brown has proposed spending several hundred million dollars per year for private-prison space while the Legislature wants to fund diversion programs. Reported the LA Times, "Brown's effort to comply with the court order has short-circuited some
of his previous plans to lower prison spending and end contracts to
house inmates out of state. If the Legislature approves his proposal,
prison spending will outpace state funding for higher education in the
current fiscal year." Whichever side prevails, California has already reduced its prison
population until it's lower than Texas, remarkably, even though the
Lone Star State has less than 70% of California's population.

Texas' incarceration levels finally appear to have plateaued. Crime rates have for the most part continued their two decade plunge while the overall population boomed. That expanding denominator partly explains why one in 27 Texans were under supervision of the justice system in 2012 compared to one in 22 in 2008. According to the Bureau of Justice Statistics, Texas had the second largest decline in the number of prisoners from 2011 to 2012 after California, down 5,852 inmates from the year before. This drop allowed Texas to close three prison units - one nearly a century old that was a hub from the old convict leasing days and two private units from the Ann-Richards/George Bush-era expansions. No court order required. Grits continues to believe that just a handful of minor policy tweaks would allow the state to close another 5-6 units next session without harming public safety in the least, given current crime rates and imprisonment trends. Looking past California and Texas, among states reducing prisoner populations, those two large states were:

followed by North Carolina (down 2,304). Colorado, Arkansas, New York, Florida, Virginia, and Maryland also reported at least 1,000 fewer inmates during the same period.

Louisiana (up 1,538 prisoners or 3.9%) and the federal prison system (up 1,453 prisoners or 0.7%) reported an increase of at least 1,000 inmates. The prison population in Mississippi, Michigan, and Kentucky each increased by more than 500 inmates in 2012.

Still, there is an enormous qualitative and quantitative difference between Texas and these smaller states that must be fully acknowledged. It only really makes sense to compare Texas to other large states where people actually live. Even by that standard, though. Texas' incarceration levels are still completely over the top. We're just being congratulated for not getting worse anymore! When you hear people say the United States has 5% of the world's population but 25% of its prisoners, Texas is still driving that train. Sure, other, smaller states like Louisiana or Georgia may have higher incarceration rates per capita, but Texas' massive size makes its similarly draconian rates a major driver of the national data.

For a more accurate understanding of where Texas stands in terms of incarceration levels compared to other large states:, see this chart compiled from Bureau of Justice Statistics "Prisoners in 2012" (pdf) and Census data:

To be fair, Texas has made progress - especially considering we're Texas and demagoguery about being "tuff on crime" seems to come second nature to our pols. But any way you slice it, our incarceration rates remain excessive compared to other large states. And there's an extent to which our Legislature can't stop some really bad habits, like creating new crimes, enhancing penalties for existing ones, and pretending any extra, resulting incarceration will all be free. According to the Texas District and County Attorneys Association's count, Texas created a whopping 184 new crimes between 2007-2013, and "enhanced" (read: "increased") penalties for many dozens more. For almost all of these, the Legislative Budget Board said the costs would be too insignificant to include in the budget.

Which brings us back to the question in the title: Texas' reforms occurred at a time (2003-7) when the Legislative Budget Board (LBB) projected the state would need 168,166 prison beds by 2012. Back then, the state's max capacity including private contracts was perhaps 157K. Now, though, instead of far surpassing that, Texas is around 6,000 or so inmates below its max-ever capacity and as of last weekend has closed three large prison units. Texas prisons and state jails house nearly 20,000 fewer prisoners than LBB at one point projected would be the case.*

The Texas Legislature deserves kudos for averting that pointless extra spending. (Helpfully, the crime surge predicted by opponents of probation reform like then Williamson County District Attorney John Bradley never materialized.) But clearly we have a long way to go and in the near term, it's hard to find reason for optimism. Crime is down, but it's down even more dramatically in some of those other large states, particularly New York, where the incarceration rate is less than half of Texas'. Meanwhile, except for Sen. John Whitmire, many of those most intimately involved in the '07 reforms have either left the Legislature or may soon leave. Certainly no one has stepped up to fill Jerry Madden's shoes after the now-retired West Point graduate made this issue his signature, championing bipartisanship in the name of budgetary pragmatism that was praised on both sides of the aisle.

Texas is getting credit lately because it's taken folks from D.C. and New York six years to figure out what happened, and also because Marc Levin, Vikrant Reddy and Co. at the Texas Public Policy Foundation have been at the center of proselytizing the "Right on Crime" agenda outside of Texas to the national conservative movement, which has been a great mitzvah. It's also true that, on the juvenile front, the scale of de-incarceration in Texas has been downright breathtaking. But that doesn't mean our justice system all of a sudden has become some shining beacon of liberty: Far from it. It took more than a decade for Texas to fill its prison system after then-Gov. Ann Richards spearheaded the effort to triple its capacity. Texas has finally stopped prison population growth, but that shouldn't be such a noteworthy accomplishment in an era of declining crime! Three prison closures sets a fine precedent, but any national praise should not for a moment contribute to self-satisfaction nor complacency. In the scheme of things, Texas is still part of the problem in America on overincarceration, not really yet a vanguard charting new solutions.
* At the moment, I can't fully explain the differences between the numbers
TDCJ self reports publicly, which is what LBB (not to mention your correspondent) uses, and the higher totals reported in this Bureau of
Justice Statistics report. According to BJS, the federal number includes probationers and parolees sent to short-term facilities instead of being revoked to
prison or state jail as well as blue-warrant prisoners waiting in county jails for transfer to TDCJ - typically 6-7% or so of local jail populations. Those two factors could explain the difference. Will try to learn more. UPDATE: See a post answering these questions here.

18 comments:

These statistics seem to agree with my book "Carnal Society": The Texas-National Sex Scandal. Things have improved somewhat but we have a long way to go with criminal justice in Texas! See the book at AMAZON.com, B&N.com and bookstores...it's full of interesting 'inside the fences' situations. Best always.

I'm glad to see Texas get kudos for these [disgustingly minimal] changes but it is so hard to not get terminally depressed about future progress.

Our Gordian Knot agencies, crimes, enhancements, law enforcement--industry cronyism, head-in-sand citizens, and vibrant good-old-boy networks in virtually every county should give everyone a reason to take a good reality check before thinking that a reform roller-coaster is flying.

Interesting that California's crime rates are already starting to creep back up since their federally mandated de-incarceration push in 2011. If memory serves, the same thing happened in Texas following the Ruiz litigation in Texas in the 1980's. It amuses me that Marc Levin and the "smart on crime" crowd so conveniently forget the enormous societal costs (both in lives and dollars) that stemmed from the "revolving door" prison system that existed in this state before Ann Richards (of all people) began the expansion of TDCJ in the 90's. As George Santayana so eloquently put it: "Those who cannot remember the past are condemned to repeat it."

Great post Grits!! Closing one prison per year for 10 years, thereby gradually adjusting inmate population along the way would be a great way to cut costs and make some of the punishments actually fit the crimes.

I've always said that the counties that insist on handing out big sentences for minor crimes ought to pay higher taxes for their right to keep levying excessive sentences.

Texas passed 1000 new laws this year. That's ONE THOUSAND! Or, 1000 more ways to end up in prison and 1000 more charges a prosecutor can lay on top of one another for 1 single act to force the innocent to plead guilty and the guilty to serve longer than they should for that act.

You are correct, it was Ann Richards. The then Governor also took privatizing corrections to an all time high. There were many people who profited generously from her era of expansionism. Wouldn't be surprised if present day proponents of "prison industry" took a lucrative ride on the Ann Richards Corrections Expansion Train.

@JG, I can see why New Yorkers would be especially irked at the attention Texas '07 reforms are getting. Y'all are actually de-incarcerating: Texas just began to bail out the boat before it sank.

That said, Levin is right that the number of people in prison and state jails in TX has declined. The fed's figures have a different baseline than TDCJ, which is only counting people in state jails and prisons. DOJ's definitions include some inmates in county jails - e.g., parole violators held pre-revocation and convicted felons TDCJ hasn't picked up yet. Texas counts those as county prisoners which are reported through another agency (the Commission on Jail Standards).

There are other probationers/parolees - like those in Intermediate Sanctions Facilities or treatment programs - who appear to be counted in the DOJ prisoner numbers but whom TDCJ counts as being on supervision.

I don't have time right now but I'll try in the coming weeks to figure out the precise differences between the feds and Texas' numbers and follow up.

Thank you, thank you, thank you Grits for writing what has needed to be written for years now. I am sick and tired of reading all this BS about how Texas has "lead the way" on reducing incarceration, implementing alternatives to incarceration, blah blah blah. All one needs to point out is that you can still be sentenced to jail in Texas up to 180 days for possessing 0-2 oz. of marijuana, or sentenced to 25-to-life for getting busted 3 times for personal possession (>1 gram!) of cocaine or other "hard" drugs. Other states decriminalized marijuana decades ago, and Colorado and Washington have legalized, and we're still living in the drug war dark ages down here. All I gotta say to people in the rest of the US, Australia, or anywhere else in the world -- don't believe the Texas hype!

@gritsforbreakfast: Yes, DOJ/BJA has a different baseline. They define "prisoners under the jurisdiction" of a state prison system to include -- as you say -- some state prisoners in county jails that have not been transported (for whatever reason) to a state prison. The way TDCJ counts their beans, they can (and in effect have) manipulated prison population levels by leaving people in local jails who, if they were in NY, would be in prison already. It really wasn't until the last reported year of data that the TX population declined to a significant extent.

LIKE I HAVE ALWAYS SAID TEXAS IS THA A-HOLE STATE, MAKE THAT MONEY THE BIG BOYS AND GIRLS OF TX.JUST KEEP THROWING PEOPLE IN PRISON, YOU ARE BREWING THE CRIMES,PUT THEM IN CRIME SCHOOL ONE ON ONE A PRISON!!..PLEASE TELL ME AND EVERY ONE ELSE HOW THIS HELPS THE OFFENDER AND THE FAMLIES. NO HEART TEXAS....! THE SYSTEM NEEDS TO BE TURNED INSIDE OUT AND SHAKE OUT THE TRUE CRIMINALS OF THE STINKING STATE..THANK YOU!

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